habeas corpus, suspension, and guantánamo: the boumediene decision

Supreme Court Review

Volumn 2008, Issue , 2008, Pages 1-59

  Meltzer, Daniel J ^a  

^a HARVARD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 67650297481     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/655122     Document Type: Review

References (226)

1. 128 S Ct 2229 (2008).
2. The decision in United States v Klein, 80 US (13 Wall) 128 (1872), did invalidate a statute phrased in jurisdictional terms, but the Court's Delphic ruling is best understood as holding that Congress may not use jurisdictional regulation to require the Supreme Court, or any federal court, to decide a case in violation of the Constitution. See generally Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 Georgetown L J 2S37,2538-49 (1998).
3. US Const, Art I, § 9, cl 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
4. See 128 S Ct at 2279-80, 2293 (Roberts dissenting); id at 2295-96 (Scalia dissenting).
5. Rumsfeld v Padilk, 542 US 426 (2004).
6. In Munafv Germ, 128 S Ct 2207 (2008), the Court rejected the government's argument that habeas corpus jurisdiction does not extend to a petition filed on behalf of American citizens held in Iraq by American forces operating there under multinational auspices. The Court proceeded, however, to rule for the government in denying the relief sought-an order barring the transfer of those individuals to Iraqi custody, where they feared they would be tortured-on the basis that a sovereign nation like Iraq generally has jurisdiction to punish offenses committed within its borders and that it is for the U.S. political branches to consider petitioners' allegations that they would face torture by Iraq.
7. Thus, while in Rami v Bush, 542 US 466 (2004), the Court rejected the government's position that the habeas statute, as it then stood, did not extend to detainees at Guantanamo Bay, it did not indicate what rights, if any, the detainees had or how deferential the scope of habeas review would be.
8. In Hamdi v Rumsfeld, 542 US 507 (2004), the government did not contest jurisdiction as such, but asserted that the habeas court could not review individual determinations by the military of enemy combatant status. Eight of nine Justices rejected that view, and at the time the decision seemed like a large defeat for the administration's strategy. From today's perspective the holding is quite modest. The Court treated the case as arising out of a war, and hence recognized the presumptive availability of wartime detention, while rejecting arguments that detention of a citizen was not authorized by or indeed violated congressional enactments. The plurality stated that the review to which the petitioner was entitled might be provided by a properly constituted military tribunal, thereby implying that the role of habeas corpus review would be at most quite limited. See text accompanying notes 158-61.
9. In Hamdan v Rumsfeld, 548 US 557 (2006), the Court invalidated the system of military commissions established by President Bush to try war crimes, but the Justices indicated that Congress could fix the defects. Congress accepted that invitation by enacting the Military Commissions Act of 2006, Pub L No 109-366, 120 Stat 2600, codified in relevant part at 28 USC § 2241(e) (Supp 2007).
10. 128 S Ct at 2294. Compare Paul A. Freund, On Presidential Privilege, 88 Harv L Rev 13, 35 (1974) ("History has a way of mocking these specters of disaster forecast from judicial decisions.").
11. See Jenny S. Martinez, Process and Substance in the "War on Terror," 108 Colum L Rev 1013 (2008) (stressing that point while criticizing what she views as the excessively procedural focus of the Supreme Court's decisions). A federal district judge ordered the government to bring a group of seventeen Chinese Muslims detained at Guantanamo to his courtroom, for release in the D.C. area, after the D.C. Circuit found no adequate basis for detaining one of them. See Parbat v Gates, 532 F3d 834 (DC Cir 2008). The government asserted that it had been unable to find a country other than China (where the detainees feared they would be tortured) that would accept them upon release, and succeeded in having the district court orders reversed on the ground that the habeas court lacked power to order otherwise inadmissible aliens to be released into the United States. See Kiyemba v Obama, 2009 WL 383618 (Feb 18, 2009).
12. Although "war" is a controversial description, see, for example, Bruce Ackerman, This Is Not a War, 113 Yale L J 1871 (2004), and Benjamin Wittes, Law and the Long War 13 (Penguin, 2008), the Court's cases have not challenged it to date.
13. Thus, Professors Pildes and Issacharoff argue that during wartime, courts have typically not made first-order decisions about individual liberty, but instead have focused on second-order questions about whether the correct institutional process has been followed. In particular, they suggest that an important question is whether Congress has authorized executive action, and that when it has, courts will uphold the action in question. See Samuel Issacharoff and Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 Theoretical Inquiries L 1 (2004). See also Cass R. Sunstein, Minimalism at War, 2004 Supreme Court Review 47, 50-51 (finding that American courts confronting national security issues characteristically take a minimalist approach, one element of which is a requirement of "clear congressional authorization for executive action intruding on interests with a claim to constitutional protection"). As Professors Pildes and Issacharoff explicitly recognize, the general argument is complicated by the frequent open-endedness of the determination whether Congress has in fact authorized a particular executive action. See 5 Theoretical Inquiries L at 36-43. But that problem did not exist in Boumediene, where § 7 of the MCA plainly supported the Executive's position that Congress has attempted to preclude the exercise of habeas corpus jurisdiction.
14. 542 US 466 (2004).
15. See Richard H. Fallon, Jr. and Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv L Rev 2029, 2059 n 116 (2007).
16. 542 US 507 (2004).
17. Id at 516, quoting the Brief for Respondents, Hamdi v Rumsfeld, No 03-6696, 3 (filed Mar 29, 2004) (available on Westlaw at 2004 WL 724020). The outer boundaries of this category are quite uncertain, but on the facts alleged by the government, Hamdi undoubtedly fell within it.
18. 542 US at 518.
19. See Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to the Secretary of the Navy (July 7, 2004) [hereinafter Wolfowitz Memorandum], online at http:/ /www.defenselink.mil/news/Jul2004/d20040707review.pdf (regarding an "Order Establishing Combatant Status Review Tribunal").
20. 119 Stat 2739.
21. § 1005(e)(2)(C) of the DTA, 119 Stat 2742.
22. Pub L No 109-366, 120 Stat 2600, codified in relevant part at 28 USC § 2241(e) (Supp 2007).
23. The MCA thus overrode the Court's ruling in Hamdan v Rumsfeld, 548 US 557, 576-77 (2006), that the DTA's preclusion of judicial review (other than under the DTA itself) did not apply to pending cases. See § 7(b) of the MCA, 120 Stat 2636. The MCA also extended the preclusion of non-DTA review to all aliens determined to be enemy combatants (or awaiting such a determination), wherever held; the DTA had applied only to those (like the Boumediene petitioners) detained at Guantanamo Bay. See § 7(a) of the MCA, 120 Stat 2636.
24. 476 F3d 981 (DC Cir 2007).
25. 127 S Ct 1478 (2007).
26. "Id.
27. "Id at 1480-81.
28. 5 01 F3d 178 (DC Cir 2007) (Bismullah I), reh'g denied, 503 F3d 137 (DC Cir 2007) (Bismullah II), reh'g en banc denied, 514 F3d 1291 (2008) (Bismullah III), vacated and remanded in light of Boumediene v Bush, 128 S Ct 2960 (2008), dismissed on remand, 2009 WL 48149 (DC Cir 2009).
29. Petition for Rehearing on the Petition for Certiorari, Boianediene v Bush, No 06-1195 (filed Apr 27, 2007) (available on Westlaw at 2007 WL 1279631).
30. See text accompanying note 189.
31. Petitioners' Reply to Opposition to Petition for Rehearing, Botmiediene v Biisb, Nos 06-1195 and 06-1196 (filed June 22, 2007) (available on Westlaw at 2007 WL 4790792).
32. See Freund, 88 Harv L Rev at 20 (cited in note 10).
33. See notes 7-8.
34. 127 S Ct 3078 (2007).
35. A recent and comprehensive review, with references to much of the earlier commentary, is Paul D. Halliday and G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va L Rev 575 (2008).
36. See Max Farrand, ed, 2 The Records of the Federal Convention of1787 334 (Yale, 1937) (Journal August 20, 1787) ("The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding months.").
37. See, for example, Massachusetts Constitution of 1780, pt 2, ch 6, Art VII ("The privilege and benefit of the writ of habeas corpus shall be enjoyed in this commonwealth, in the most free, easy, cheap, expeditious, and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months.").
38. See William F. Duker, A Constitutional History of Habeas Corptis 126-29 (Greenwood, 1980).
39. See Halliday and White, 94 Va L Rev at 583, 701 (cited in note 35) (the privilege was taken by the Framers and their contemporaries to be self-evident).
40. See 128 S Ct at 2246-57.
41. See Rex A. Collings, Jr., Habeas Corpus for Convicts-Constitutional Right or Legislative Grace? 40 Cal L Rev 335, 342 (1952) (assembling criticism of the negative wording of the clause).
42. The writ was used, albeit sparsely, in the colonies. See Halliday and White, 94 Va L Rev at 672 (cited in note 35); Duker, Constitutional History at 98-115 (cited in note 38).
43. See Dallin H. Oaks, Habeas Corpus in the States-1716-1865, 32 U Chi L Rev 243, 248-49 (1965).
44. See id at 248-49 (stating that because every state made the writ available, the Founders may not have focused on whether the Suspension Clause guaranteed the privilege of the writ).
45. See Halliday and White, 94 Va L Rev at 629-30 (cited in note 35).
46. See G. Edward White, 3-4 History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815-35 at 112-13 (Oxford, 1988); Meltzer, 86 Georgetown L J at 2553 (cited in note 2).
47. William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth 34 (University of South Carolina, 1995).
48. See generally Richard H. Fallon, Jr., Daniel J. Meltzer, and David L. Shapiro, Hart and Wecbskr's The Federal Courts and the Federal System 7-9 (Foundation, 5th ed 2003) (hereafter Hart and Wechsler). The Madisonian Compromise had settled the issue of congressional control over the inferior federal courts eight days before Charles Pinckney, on August 20, 1787, proposed what eventually became the Suspension Clause. See Duker, Constitutional History at 128 (cited in note 38).
49. Not everyone has accepted this point in the context of habeas corpus. Thus, Francis Paschal, The Constitution and Habeas Corpus, 1970 Duke L J 605, 607, asserts that the clause "is a direction to all superior courts of record, state as well as federal, to make the habeas privilege routinely available." On this view, the clause qualifies the general understanding of the Madisonian Compromise-if not of the notion that Congress has broad discretion whether to create lower federal courts, then surely of the accompanying notion, see, for example, Sheldon v Sill, 49 US (8 How) 441, 448-49 (1850), that Congress's discretion extends to how broadly to confer jurisdiction on such inferior courts as it does create.
50. The Boumediene Court does cite one Founder, Edmund Randolph, who in the Virginia Ratifying Convention appeared to understand the tension, stating that the Suspension Clause was an "exception" to the power of Congress to regulate the courts. 128 S Ct at 2246, quoting 3 Jonathan Elliot, ed, Debates in the Several State Conventions on the Adoption of the Federal Constittition 460-64 (]. B. Lippincott, 2d ed 1876).
51. For discussion of the powerful arguments that only the legislature may suspend the writ, see Jeffrey D. Jackson, The Power to Suspend Habeas Corpus: An Answer from the Argimients Surrounding Ex parte Merryman, 34 U Bait L Rev 11 (2004).
52. Act of Sept 24, 1789, 1 Stat 73, 81-82.
53. 8 US (4 Cranch) 75 (1807).
54. "Id at 93-94.
55. See Halliday and White, 94 Va L Rev at 680 (cited in note 35).
56. 8 US (4 Cranch) at 95.
57. David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 Notre Dame L Rev 59, 64-65 (2006). For sources noting the close connection between the writ, as it evolved in the battle against English despotism, and notions of due process, see Robert S. Walker, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty 88 (Oklahoma State University, 1960); Daniel John Meador, Habeas Corpus and Magna Carta (University of Virginia, 1966). Justice Scalia, in his dissenting opinion in Hamdi v Rumsfeld, 542 US 507 (2004), a case in which the existence of federal court habeas jurisdiction was uncontested, stressed that habeas corpus was the means for protecting the due process rights of a citizen suspected of a crime-specifically, of the right, in his view, not to be deprived of liberty except by criminal charge and trial. See id at 556-57 (Scalia dissenting).
58. See Swain v Pressley, 430 US 372 (1977) (substituting for federal habeas corpus a collateral review procedure in the D.C. local courts, in part to relieve the burdens on the federal court); United States v Hayman, 346 US 205 (1952) (substituting for federal habeas corpus a postconviction review procedure under 28 USC § 2255, primarily to redirect cases from overcrowded federal districts in which federal penitentiaries were located to the districts in which prisoners had been convicted and sentenced). The statutory remedy in Swain substituted, for Article III judges, local judges who lack Article Ill's tenure and salary protection, but the Supreme Court reasoned that if the untenured local judges may conduct criminal trials in the first place, they may also entertain collateral review proceedings. 430 US at 382-83. (The Court might have added that the Constitution did not guarantee that habeas corpus would be exercised by the federal courts. See text accompanying notes 69-71.)
59. In Felker v Turpin, 518 US 651 (1996), the Court upheld a 1996 statutory amendment that restricted the ability of state prisoners detained pursuant to a criminal conviction to file more than one habeas petition in federal court. Chief Justice Rehnquist's opinion for a unanimous Court, after noting that before 1867 federal habeas corpus jurisdiction did not generally extend to persons in state custody and that collateral attacks on judgments of conviction rendered by courts of competent jurisdiction were not permitted until well into the twentieth century, nonetheless "assume[d], for purposes of decision here, that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789." Id at 663. He proceeded to find no suspension, quoting Bolivian for the proposition that a federal court's power to award the writ must be given by positive law, declaring that judgments about the proper scope of the writ are normally for Congress to make, and concluding that the restrictions on filing multiple petitions "are well within the compass of" the evolutionary process by which habeas jurisdiction had developed. Id at 664.
60. 533 US 289 (2001).
61. quot;Id at 301 n 13.
62. Id at 301. The year 1789 is a puzzling constitutional baseline; either 1787 (when the drafting was completed) or 1788 (when nine states had ratified the Constitution) seems more appropriate. The First Judiciary Act was enacted in 1789, but since Congress may extend habeas jurisdiction more broadly than the Constitution demands, the scope of the writ under that Act, except insofar as it reflects constitutional understandings, should not govern interpretation of the Suspension Clause.The 1789 baseline may have entered the Court's decisions though carelessness. In Swain v Pressley, 430 US 372, 384 (1977), which upheld Congress's substitution, for habeas review of convictions obtained in the local D.C. courts, a postconviction proceeding in the local courts themselves, see note 58, Chief Justice Burger's concurring opinion interpreted the Suspension Clause in light of the Framers' understanding and concluded that "[t]he writ in 1789 was not considered 'a means by which one court of general jurisdiction exercises post-conviction review over the judgment of another court of like authority.'" Id at 385 (Burger concurring) (emphasis added), quoting Dallin Oaks, Legal History in the High Court: Habeas Corpus, 64 Mich L Rev 451 (1966). His opinion makes no reference to the scope of the jurisdiction conferred in the First Judiciary Act, instead stating that '"the writ protected by the suspension clause is the writ as known to the framers, not as Congress may have chosen to expand it.'" Id, quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgements, 38 U Chi L Rev 142, 170 (1970).Subsequent decisions have echoed Chief Justice Burger's seemingly careless reference to 1789. See, for example, St. Cyr, 533 US at 301 (affirming that "at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789"'), quoting Felker v Turpin, 518 US at 663-64.
63. 533 US at 338 (Scalia dissenting).
64. Id at 339-40.
65. Id at 337.
66. Id at 338.
67. 128 S Ct at 2297 (Scalia dissenting). In Hamdi v United States, 542 US 507 (2004), no one disputed that the federal courts possessed habeas jurisdiction. Yet in his dissent, some of Justice Scalia's reasoning was at least in tension with his position in St. Cyr. See 542 US at 558 ("The writ of habeas corpus was preserved in the Constitution-the only common-law writ to be explicitly mentioned.").
68. S Ct at 2287 (Roberts dissenting).
69. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv L Rev 1362, 1364-65, 1401 (1953).
70. See Duker, Constitutional History at 126-80 (cited in note 38). See also Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L J 1425, 1509 (1987). In discussing where the ultimate right to relief might reside if Congress failed to vest habeas jurisdiction in the federal courts, Duker's view would not preclude Congress from displacing state court habeas jurisdiction by making a grant of federal court habeas jurisdiction exclusive.
71. See Duker, Constitutional History at 131-32 (cited in note 38). One might also note that state court judges, while they lack Article Ill's tenure and salary protection, are not under the influence of the federal political branches. See Daniel J. Meltzer, Legislative Courts, Legislative Power, and the Constitution, 65 Ind L J 291, 300 (1990).
72. The Court does say that the Suspension Clause guarantees that, absent suspension, "the Judiciary will have the writ, to maintain the 'delicate balance of governance.'" 128 S Ct at 2247 (quoting Hamdi v United States, 542 US at 536) (plurality). The capitalization of "Judiciary" might be taken to refer to the federal judiciary rather than the courts generally, but that is anything but evident, and surely this passage does not clearly express a constitutional requirement rather than an assumption about the appropriate outcome of this case.
73. Numerous decisions have cited the observation of Professors Landis and Frankfurter that, as a result of statutory changes in Reconstruction, the federal courts "became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." See Felix Frankfurter and James Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65 (Macmillan ed, 1927), quoted, for example, in Zwickler v Koota, 389 US 241, 247 (1967). And numerous contemporary theories have been offered suggesting that state courts are not necessarily a constitutionally adequate substitute for federal courts in adjudicating federal rights. See, for example, Hart and Wechsler at 330-45 (cited in note 48). My own views are found in Daniel J. Meltzer, The History and Structure of Article III, 138 U Pa L Rev 1569 (1990).
74. One might question whether state courts have extraterritorial jurisdiction to reach detentions at Guantánamo Bay and, if not, whether that problem exposes a flaw in Hart's premise. A plausible response is that state courts could assert jurisdiction over a custodian found within a state, and the local District of Columbia courts could do so over a custodian found within the District. There is a risk, however, that multiple courts (e.g., those of Virginia, Maryland, and the District of Columbia) might each assert jurisdiction over federal custodians found in each jurisdiction. To be sure, a similar problem could arise were multiple federal courts (those in Virginia, Maryland, and the District of Columbia) each to exercise jurisdiction, but in that case there are relatively good mechanisms for coordination and transfer."
75. US (21 How) 506 (1859).
76. 80 US (13 Wall) 397, 411-12 (1872).
77. Representative criticisms are collected in Todd Pettys, State Habeas Relief for Federal Extrajudicial Detainees, 92 Minn L Rev 265, 295-96 nn 172-75 (2007).
78. See Hart and Wecbsler at 437-39 (cited in note 48). For criticism of the implied preemption rationale, see Pettys, 92 Minn L Rev at 297-307 (cited in note 77).
79. take the terminology from Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv L Rev 1321 (2000).
80. See Amar, 96 Yale L J at 1509 (cited in note 70); Pettys, 92 Minn L Rev at 309-10 (cited in note 77).
81. See Collings, 40 Cal L Rev at 345 (cited in note 41); Meador, Habeas Corpus at 33 (cited in note 57).
82. See Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand L Rev 953, 980-83 (1994).
83. See, for example, In re Yamashita, 327 US 1 (1946); Ex parte Endo, 323 US 283 (1944); Ex parte Quirin, 317 US 1 (1942); Ex parte Milligan, 71 US (4 Wall) 2 (1866).
84. Pub L No 107-40, 115 Stat 224, 224 (2001), note following 50 USC § 1541 (2000 ed Supp V).
85. See Curtis Bradley and Jack Goldsmith III, Congressional Authorization and the War on Terrorism, 118 Harv L Rev 2047, 2057-66 (2005).
86. See Duker, Constitutional History at 149, 178 n 190 (cited in note 38).
87. See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405 (1989) (advocating canons of construction that would avoid constitutional doubt, promote political accountability, preserve hearing rights, and promote the rule of law); Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex L Rev 1549 (2000) (stressing the importance of resistance norms in order to protect enduring public values, including avoiding incursions on the power of judicial review).
88. Duker, Constitutional History at 149, 178 n 190 (cited in note 38).
89. Oddly, all four dissenters joined both the Chief Justice's dissent and Justice Scalia's dissent. The former says that the question whether the writ runs to Guantanamo is difficult, see 128 S Ct at 2279 (Roberts dissenting), while the latter argues that the obvious answer to the question is no, see id at 2302 (Scalia dissenting).
90. Id at 2303 (Scalia dissenting).
91. See generally David A. Strauss, Why Conservatives Shouldn't Be Originalists, 31 Harv J L & Pub Pol 969, 970-72 (2008). A fine summary of key objections to originalism and citations is found in an article attempting, in my judgment unpersuasively, to respond to them. See Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw U L Rev 226 (1988).
92. See Halliday and White, 94 Va L Rev at 588-93 (cited in note 35); Shapiro, 82 Notre Dame L Rev at 65-68 (cited in note 57).
93. Fallon and Meltzer, 120 Harv L Rev (cited in note 15).
94. That theme is stressed in Halliday and White, 94 Va L Rev at 608-13 (cited in note 35).
95. Fallon and Meltzer, 120 Harv L Rev at 2044 (cited in note 15).
96. See Toth v Quarks, 350 US 11 (1955); Burns v Wilson, 346 US 137 (1953). Justice Scalia's insistence that habeas corpus lacks extraterritorial application fits poorly with these decisions. In his dissent in Rami, he suggested they represented an "atextual exception thought to be required by the Constitution." 542 US at 497 (Scalia dissenting). In Bou- mediene, he said, the common law writ received into our constitutional republic "took on such changes as were demanded by a system in which rule is derived from the consent of the governed, and in which citizens (not 'subjects') are afforded defined protections against the Government." 128 S Ct at 2306. But, of course, noncitizens also enjoy constitutional rights, and so his discussion merely begs the question whether aliens detained at Guan- tanamo Bay, like aliens in the United States, or citizens detained abroad, enjoy rights under the Suspension Clause.
97. For a powerful elaboration of such an approach to constitutional interpretation generally, see David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877 (1996). For skepticism, see Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum L Rev 1482 (2007).
98. Fallon and Meltzer, 120 Harv L Rev at 2033 (cited in note 15).
99. See, for example, Robert Chesney and Jack Goldsmith, Terrorism and the Convergence of the Criminal and Military Detention Models, 60 Stan L Rev 1079 (2008); Bradley and Goldsmith, 118 Harv L Rev at 2068 (cited in note 85).
100. See Bradley and Goldsmith, 118 Harv L Rev at 2124 (cited in note 85).
101. Fallon and Meltzer, 120 Harv L Rev at 2033 (cited in note 15); accord, Wittes, Law and the Long War at 154-68 (cited in note 12).
102. 128 S Ct at 2303.
103. See Fallon and Meltzer, 120 Harv L Rev at 2045 (cited in note 15). This characterization of the Suspension Clause assumes that a valid suspension does not merely withdraw the privilege of the writ-which is, after all, only one particular remedy for unlawful detention-while leaving detainees free to seek other remedies, such as damages, but instead immunizes the covered executive action from judicial redress generally. For a defense of that assumption, see Shapiro, 82 Notre Dame L Rev (cited in note 57); Amanda Tyler, Suspension as an Emergency Power, 118 Yale L J (2008-2009). The opposing view is argued forcefully, but in my judgment unconvincingly, in Trevor Morrison, Ha?ndi's Habeas Puzzle: Suspension as Authorization? 91 Cornell L Rev 411 (2006), and Trevor Morrison, Suspension and the Extrajudicial Constitution, 107 Colum L Rev 1533 (2007).
104. See 128 S Ct at 2262.
105. He has to wrestle, in particular, with the English decisions that the writ does not run to Scotland. His suggestion that this limitation arose from the difficulties, in eighteenth-century conditions, of extending the writ to such a distant location, see id at 2250, is unconvincing, as Justice Scalia notes, id at 2206 (Scalia dissenting), given that the Channel Islands presented similar difficulties but were within the scope of the writ. Justice Kennedy's further argument that the English courts were resting on a kind of abstention in favor of the Scottish court system is ingenious but made quite hesitantly. See id at 2250 ("we cannot disregard the possibility that the common-law courts' refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns"). The hesitance may be appropriate, as the importation of modern abstention concerns is perhaps anachronistic, and he was unable to point to contemporary sources articulating this basis for the refusal to extend the writ to Scotland.In other respects, however, Justice Kennedy is relatively cautious in his evaluation of the historical materials. For example, he declines to endorse the conclusion of a leading article that viewed the extension of the English writ to territory in the Indian subcontinent that was not part of the British empire as supporting a broad conception of the writ's territorial reach. See Halliday and White, 94 Va L Rev at 593-613, 700, 704-05 (cited in note 35). Instead, Justice Kennedy noted that because the court exercising that jurisdiction was created by a special English statute and was located in the Indian subcontinent, its example does not necessarily indicate the jurisdictional scope of a common law court in England exercising the traditional common law habeas corpus jurisdiction. 128 S Ct at 2249.
106. Id at 2251.
107. Id at 2297 n 2 (Scalia dissenting).
108. Id at 2248. Note that the Chief Justice's dissent, after discussing the scope of the writ for prisoners of war at the time of the Founding, proceeds to argue that even "[a]ssuming the constitutional baseline is more robust," there is no constitutional violation. Id at 2287 (Roberts dissenting).
109. See generally Sunstein, 2004 Supreme Court Review 47 (cited in note 13) (arguing that courts encountering national security issues have characteristically followed a particular form of minimalist decision making).
110. 128 S Ct at 2248.
111. See id at 2253-62. Of course, one might respond that the opinion could be read as holding that the original understanding of the Suspension Clause was a functional one that contemplated the kind of evolution evidenced by Boumediene. Such a version of or- iginalism, however logical, is clearly not how that term is ordinarily used.
112. Id at 2259.
113. Id at 2299 (Scalia, J, dissenting).
114. See Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22, 58 (1992).
115. The problem is similar to a familiar one in First Amendment law, the difference between definitional and ad hoc balancing. See, for example, Wallace Mendelson, The First Amendment and the Judicial Process: A Reply to Mr. Frantz, 17 Vand L Rev 479 (1964); Melville B. Nimmer, The Right to Speak from Tivies to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Cal L Rev 935 (1968).
116. 339 US 763 (1950).
117. See Fallon and Meltzer, 120 Harv L Rev at 2056 (cited in note 15).
118. 339 US at 778-79.
119. 128 S Ct at 2299 (Scalia dissenting). The qualification is required by the post ei sentrager decisions in Toth v Quarks, 350 US 11 (1955), and Burns v Wilson, 346 US 137 (1953), in which the Court exercised jurisdiction over petitions by American citizens detained abroad by military authorities.
120. 128 S Ct at 2252. The Court's recognition that separation-of-powers principles protect aliens as well as citizens was qualified by the statement that those principles may be asserted by foreign nationals "who have the privilege of litigating in our courts." Id at 2246.
121. Earlier, in the Rami opinion, the Court sought to limit the scope of Eisentrager without squarely reaffirming it, and, in noting that habeas jurisdiction would reach an American citizen detained at Guantanamo, said that "there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship." 542 US at 481. But the Rami decision was an interpretation of the habeas statute as it then stood, not of the Constitution, and, moreover, it was full of conflicting indications about whether aliens detained not at Guantanamo Bay but elsewhere overseas could invoke habeas jurisdiction. See Fallon and Meltzer, 120 Harv L Rev at 2059 n 116 (cited in note 15).
122. See, for example, Balzac v Porto Rico, 258 US 298, 311-12 (1922).
123. 1 28 S Ct at 2258-59.
124. Id.
125. 125 Eisentrager, 339 US at 770-71.
126. See generally, for example, Frederick Schauer, Precedent, 39 Stan L Rev 571 (1987).
127. 1 28 S Ct at 2248.
128. Id at 2249-51.
129. Id at 2251 (emphasis added).
130. Id at 2253.
131. Id at 2261. And after stressing Guantánamo Bay's uniqueness, the Court adds that "if the United States were answerable to another sovereign for its acts on the naval base, or if the detention were in an active theater of war," "arguments that issuing the writ would be 'impracticable or anomalous' would have more weight." Id at 2261-62, quoting Reid v Covert, 354 US 1, 74 (1957) (Harlan concurring).
132. Brief for Respondents, Boimiediene v Biish, Nos 06-1195 and 06-1196, 25 (filed Oct 9, 2007) (available on Westlaw at 2007 WL 2972541).
133. This paragraph draws on Fallon and Meltzer, 120 Harv L Rev at 2057-58 (cited in note 15).Insofar as the question, given the Court's current membership, may turn on Justice Kennedy's vote, it is worth noting that his opinion concurring in the judgment in Rami reaffirmed that "Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not enter." 542 US at 487 (Kennedy concurring in the judgment). He did not seek to undermine Eisentrager but rather to distinguish it on two bases. The former-that here the detainees were being held indefinitely without having received a full military trial-might apply to detainees held anywhere, and indeed would apply a fortiori if persons detained overseas had not even received process equivalent to a CSRT determination. But the second basis of distinction-that Guantanamo Bay is "in every practical respect a United States territory" and is "far removed from any hostilities," id at 487-88-would suggest a more limited reading.
134. In considering the scope of habeas jurisdiction abroad, one could imagine a more particularized inquiry along a different dimension. Most aliens detained abroad, like those in Boumediene, will lack other contacts with the United States. But that will not invariably be the case, and where it is not, a simple rule that aliens truly abroad fall outside the reach of the Suspension Clause could have harsh repercussions. To take a variant of a hypothetical posed
135. Fallon and Meltzer, 120 Harv L Rev at 2057 (cited in note 15).
136. See, for example, David A. Martin, Offshore Detainees and the Role of Courts After Rasul v Bush: The Underappreciated Virtues of Deferential Review, 25 BC Third World L J 125 (2005).
137. Any geographic limitation to habeas jurisdiction could create incentives for officials to hold detainees in some places and not others in order to avoid the risk of judicial review. If aliens "truly" abroad are outside habeas jurisdiction, military officials may hesitate to bring them from foreign countries to Guántanamo or the United States, where the conditions of confinement might be more secure or humane but where habeas jurisdiction would attach.The only way to avoid some kind of perverse incentive is to establish a fully worldwide jurisdiction, and even that would not eliminate incentives to escape judicial review-for the United States could still engage in extraordinary rendition, for example, so that detainees are no longer in American custody. We know that the government already has engaged in such actions, sometimes with horrifying results. See generally Jane Mayer, The Dark Side (Doubleday, 2008). There is, in short, no simple solution to the incentives problem.W hether detainees, once having been detained in Guantanamo, would lose their rights under the Suspension Clause if transported abroad and detained there by the United States raises distinct questions. It surely is relevant that the Habeas Corpus Act of 1679, 31 Car 2, c 2 (1679), in order to prevent the king from defeating the jurisdiction of the English courts, forbade transporting prisoners "into any Parts Garrisons Islands or Places beyond the Seas." See Helen A. Nutting, The Most Wholesome Law-The Habeas Corpus Act of1679, 65 Am Hist Rev 527 (1960). And at least as to detainees who had filed petitions prior to being moved, the decision in Ex parte Endo, 323 US 283 (1944), provides that a district court that initially has jurisdiction over a habeas petition does not lose it when the government transfers the petitioner outside the court's territorial jurisdiction. (Endo, to be sure, involved a transfer to a different district within the United States rather than abroad.)
138. S Ct at 2279 (Souter concurring).
139. See text accompanying notes 58-59.
140. 128 S Ct at 2266, quoting St. Cyr, 533 US at 302.
141. Id at 2269-71.
142. Only eight days after the Boumediene decision, the D.C. Circuit, in exercising review under the DTA, interpreted that Act as permitting it to order the release of a detainee if there was not an adequate basis for detaining him. See Parhat v Gates, 532 F3d 834 (DC Cir 2008).
143. 128 S Ct at 2273.
144. See Wittes, Law and the Long War at 86-87 (cited in note 12).
145. See 128 S Ct at 2291 (Roberts dissenting).
146. See id at 2273.
147. Stat 2741.
148. Some statements in the legislative record suggested that the court of appeals could not take evidence. See, for example, 152 Cong Rec, S 10,268 (daily ed, Sept 27, 2006) (statement of Sen Kyi); id at S 10,403 (daily ed, Sept 28, 2006) (statement of Sen. Cornyn).
149. See 28 USC § 2241(b).
150. See Fallon and Meltzer, 120 Harv L Rev at 2037 (cited in note IS).
151. See generally Hart and Wecbsler at 1290-92 (cited in note 48).
152. See id at 1302-99.
153. See 128 S Ct at 2292 (Roberts dissenting).
154. See id at 2275.
155. See, for example, Parhat v Gates, 532 F3d 834 (DC Cir 2008).
156. See Bismullah v Gates, 2009 WL 48149 (DC Cir 2009).]
157. Id at 2279-80, 2293 (Roberts dissenting); id at 2296, 2302-03 (Scalia dissenting).
158. 542 US at 533.
159. Id at 534.
160. Id at 538.
161. Id.
162. See Brief for the Respondents, Boumediene v Bush, Nos 06-1195 and 06-1196,*3-4, 50-52 (available on Westlaw at 2007 WL 2972541) (citing U.S. Department of the Army et al, Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (Nov 1, 1997)).
163. Id at *50-52. See also Wittes at 100-01 (cited in note 12).
164. See Reply Brief for Boumediene Petitioners, Botimediene v Bush, No 06-1195, *13-14 (Nov 13, 2007) (available on Westlaw at 2007 WL 3440934).
165. Id at 2285 (Roberts dissenting).
166. Idat2269.
167. Id at 2269-70.
168. Id at 2270, quoting Frank v Mangum, 237 US 309, 346 (1915) (Holmes dissenting).
169. Id at 2270.
170. Id.
171. See Brief for the Boumediene Petitioners, Botmiediene v Bush, No 06-1195, 4-5 (filed August 24, 2007) (available on Westlaw at 2007 WL 2441590).
172. See id at 5 (noting one CSRT's determination that a Bosnian Supreme Court decision ordering one of the petitioners released was not "reasonably available," even though it had been filed in a district court proceeding and served on government counsel, and another CSRT's determination that testimony from a person in Sarajevo was unavailable even though the petitioner's counsel later easily located him by looking in the Sarajevo telephone book).
173. See Memorandum at 3 (cited in note 19).
174. See Brief for the Boumediene Petitioners, Boumediene v Bush, No 06-1195, *30 (filed August 24, 2007) (available on Westlaw at 2007 WL 2441590).
175. 542 US at 516, quoting Brief for Respondents, Hamdi v Rumsfeld, No 03-6696, *3 (filed Mar 29, 2004) (available on Westlaw at 2004 WL 724020).
176. See Memorandum at 1 (cited in note 19).
177. 1 28 S Ct at 2275.
178. Id at 2282 (Roberts dissenting).
179. Id at 2270.
180. See Wittes, Law and the Long War at 80-81 (cited in note 12).
181. See Mark Denbeaux and Joshua Denbeaux, Report on Guantanamo Detainees: A Profile of 517 Detainees Through Analysis of Department of Defense Data 4 (Seton Hall Pub Law- Research Paper No 46, 2006), available at http://law.shu.edu/aaafinal.pdf.
182. See Wittes, Law and the Long War at 72-99 (cited in note 12).
183. See Fallon and Meltzer, 120 Harv L Rev at 2098 (cited in note 15) (noting the importance, in determining the appropriate scope of habeas review, of the comparative expertise of executive and judicial decision makers, and contending that the military is not necessarily more competent than the courts in making factual determinations).
184. Id at 2110.
185. See Chesney and Goldsmith, 60 Stan L Rev at 1081, 1099-1100 (cited in note 99).
186. 128 S Ct at 2270. Accord, Chesney and Goldsmith, 60 Stan L Rev at 1100 (cited in note 99).
187. See 542 US at 549-51 (Souter concurring in part, dissenting in part, and concurring in the judgment).
188. Oliver Wendell Holmes, Jr., The Comvion Law 5 (Little, Brown 1881) ("The life of the law has not been logic; it has been experience.").
189. See Reply to Opposition to Petition for Rehearing, Al Odah v United States, No 06- 1196, Appendix (DC Cir June 22, 2007) (Declaration of Stephen Abraham).
190. Denbeaux et al, No-Hearing Hearings-CSRT: The Modern Habeas Corpus? An Analysis of the Proceedings of the Government's Combatant Status Review Tribunals at Guantanamo 2-3, available online at http://law.shu.edu/news/ final-no-hearing-hearings-report.pdf.
191. See Brief for the Boumediene Petitioners, Boumediene v Bush, No 06-1195, *3-4 (filed August 24, 2007) (available on Westlaw at 2007 WL 2441590) (quoting Guantanamo Detainee Cases, 355 F Supp 2d 443, 475 (DDC 2005)).
192. See id at *4-5.
193. 128 S Ct at 2270.
194. Id at 2289 (Roberts dissenting).
195. See, for example, Florida Power and Light Co. v Lorion, 470 US 729, 744 (1985).
196. Brief for Respondents, Boumediene v Bush, Nos 06-1195 and 06-1196, *60 (filed Oct 9, 2007) (available on Westlaw at 2007 WL 2972541).
197. Id at *60-61.
198. See, for example, id at 2275; id at 2277-78 (Souter concurring).
199. S Ct at 2271-72.
200. See, for example, id at 2273; see also the cases of Bismullah and of the Uighur detainees, set forth in the Brief in Opposition to the Petition for Certiorari in Gates v Bismullah and Parhat v Gates, No 07-1054 (Supreme Court, filed Nov 3, 2008).
201. See, for example, Peter Schuck, Suing Government: Citizen Remedies for Official Wrongs 24 (Yale, 1983); William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale LJ 635, 635-37, 642-49 (1982); Robert Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 Stan L Rev 661, 710-11 (1978).
202. See Fletcher, 91 Yale L J at 693 (cited in note 201).
203. See Secretary of the Navy, Memorandum on Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at Guantanamo Bay Naval Base, Cuba, Combatant Status Review Tribunal Process, Paragraphs E(3), H(4); Recorder Qualifications, Roles, and Responsibilities, Paragraph C Quly 29, 2004), available at http: //www.defenselink.mil/news/Jul2004/d20040730comb. pdf.
204. See id, Combatant Status Review Tribunal Process, §ampers E(l), F(8), G(4).
205. Bismullah v Gates (Bismullah I), 501 F3d 178, 181 (DC Cir 2007).
206. Bismullah v Gates (Bismullah II), 514 F3d 137, 138-39 (DC Cir 2007).
207. Bismullah v Gates (Bismullah 11), 514 F3d 1291, 1300 (DC Cir 2008) (Henderson dissenting from the denial of rehearing en banc). See generally Florida Power & Light v Lorion, 470 US 729, 740 (1985); United States v Carlo Biahchi and Co., 470 US 709, 714-15 (1963).
208. Bismullah v Gates (Bismullah I), 503 F3d 137, 141 (DC Cir 2007).
209. See Brady v Maryland, 373 US 83 (1963).
210. See Weatherford v Bursey, 429 US 545 (1977).
211. See Reply Brief for Boumediene Petitioners, Boumediene v Bitsh, No 06-1195, *18-19 (Nov 13, 2007) (available on Westlaw at 2007 WL 3440934).
212. 8 USC * 1229a(b)(4)(B).
213. 8 USC * 1101(b)(4).
214. 8 USC * 1229a(c)(3)(A).
215. F3d 1291, 1296 (DC Cir 2008) (Ginsburg concurring in the denial of rehearing en banc).
216. See text accompanying note 177.
217. See, for example, Carafes v LaVallee, 391 US 234, 238 (1969); Fay v Noia, 372 US 391, 400 (1963), overruled on other grounds in Coleman v Thompson, 504 US 722 (1991). One purpose of the enactment by Parliament of the Habeas Corpus Act of 1679, 31 Car 2, c 2 (1679), was to provide "more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters" by requiring that the jailer file a return to the writ within three days unless great distances were involved. The Act also required that persons detained for treason or felony be brought to trial, upon their motion, within two terms of court or released on bail.
218. See, for example, 28 USC * 2254(b-c) (2006).
219. See, for example, Schlesinger v Councilman, 420 US 738 (1975).
220. See Ex parte Royall, 117 US 241 (1886).
221. For a brief discussion of some of these questions, written before Boumediene, see Fallon and Meltzer, 120 Harv L Rev at 2089-95 (cited in note 15).
222. Richard Fallon and I have previously tried to sketch an approach to such problems. See id at 2096-2111.
223. See Obama for America, http://obama.3cdn.net/417b7e6036dd852384- luzxmvl09.pdf.
224. For an elaboration of this theme from a doctrinal perspective, see Fallon and Meltzer, 120 Harv L Rev at 2097-98 (cited in note IS).
225. See text accompanying notes 22-23.
226. See generally Martinez, 108 Colum L Rev (cited in note 11).